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Prosecutors kick Phorm case upstairs

More delays in ISP wiretapping probe

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Prosecutors have further delayed a decision on whether anyone will be prosecuted over BT's secret trials of Phorm's web monitoring system.

The case is now under consideration "at a senior level", the Crown Prosecution Service said in a letter to Alex Hanff, the privacy campaigner who complained after police refused to investigate.

The CPS has been running its own investigation for almost 800 days. Earlier this year it suggested it would make an announcement in November, but that date has now slipped twice.

"I last wrote to you on 26th November 2010 in which I said that I considered it more realistic to suggest that a decision would be made by mid-December," a CPS official said in the letter this week.

"The whole case is under consideration at a senior level and I do not consider that a decision will be made by mid-December.

"I am sorry if I raised your hopes in my earlier letter but at the time that I wrote to you I genuinely thought that the CPS would be in a position to make a decision by the provisional date I gave you. That has not proved possible and very careful consideration of this matter continues."

The letter does not suggest a new date, beyond pledging that a decision will be made as soon as possible.

The case is focused on the Regulation of Investigatory Powers Act (RIPA), which makes interception of communications an offence except in special circumstances, such as by law enforcement agencies under a warrant. Customer consent is required for commercial interception, and BT and Phorm did not attempt to get the consent of the tens of thousands of customers whose broadband traffic was monitored and profiled for advertising in 2006 and 2007.

In deciding whether or not to prosecute, the CPS must consider whether there is a realistic prospect of a conviction on the evidence available, and whether it would be in the public interest.

The outcry when The Register revealed the trials has forced the government to change RIPA to outlaw "unintentional interception" and tighten the rules on consent. ®